Miss. Tort Reform In Play As Lawyers Flock to Magnolia State

Problems and states come in all different shapes and sizes.

For the insurance industry, keeping an eye on tort reform in Mississippi has been an item of importance in recent years. For the American Insurance Associ-ation (AIA), the subject has been high on the radar screen, as the association hopes to see more reform passed in the coming year.

According to Julie Putnam, public affairs spokesperson for the AIA, “For several years Mississippi’s judicial climate has deteriorated, to the point where surveys (in 2002 and again this year) of U.S. corporate counsel done by the U.S. Chamber’s Institute for Legal Reform found that the state was considered to have the worst legal climate of any state in the country. And these perceptions are considered by companies to be an important factor when deciding where to do business. Corporate America’s perceptions of Mississippi as the state with the worst legal environment are right in line with those of the state’s own business and medical communities, who are calling for more changes in the state’s civil liability system. The current system is seen a real impediment to the state’s economic development efforts.”

While the state reportedly has troubles in-house, Putnam said that perceived problems are keeping new business out of the Magnolia State.

“The state’s negative judicial environment is felt way beyond state borders, though, by companies and insurers who don’t even do business in Mississippi,” Putnam continued. “Mississippi has weak joinder and venue laws, which means plaintiffs’ attorneys can file lawsuits with hundreds of dissimilar claims in Mississippi counties that have little connection to the alleged harm (e.g. PhenFen cases filed in a particular rural county because a local Mom & Pop drug store sold the drug, or asbestos cases where some claimants are experiencing harmful effects from asbestos exposure and some may have been exposed but have no symptoms). Juries in certain rural, economically deprived counties are willing (and eager) to levy huge jury awards against corporate defendants; and certain judges are known to be pro-plaintiff. As neighboring states passed tort reform laws in the 1990s (primarily Alabama, but also Florida and Texas) more out-of-state lawyers began flocking to the friendlier courts of Mississippi. Over 43 percent of those who were admitted to the state bar in the spring of 2003 were out-of-state lawyers.”

Putnam said AIA has gotten involved in Mississippi’s 2003 elections because “without a change in the state’s leadership — including electing more pro-business legislators — changing the litigation climate will be much more challenging. We did see some progress in 2002: the legislature passed medical liability reform and tort reform bills that represent a good start, but still leave us short of true reform (e.g., stronger venue law, $500,000 cap on non-economic damages, protection of the “innocent seller” from being named a defendant). All statewide elected officials are up for re-election this year, in addition to all members of the House and Senate. In a nutshell, AIA’s strategy is to support pro-tort reform candidates, whether they are incumbents or challengers, and whether they’re running for governor or the state legislature.”

Shep Montgomery, special projects director for the Mississippi Insurance Depart-ment, pointed out that House Bill 2 (Mississippi’s tort reform bill) was passed and signed into law by Gov. Ronnie Musgrove in early October of 2002.

Approved by a margin of 87-32 in the House and 41-6 in the Senate, the bill addressed the following specific reforms:

— Caps non-economic damages at $500,000 in cases involving medical malpractice. The cap escalates to $750,000 in 2011 and $1 million in 2017.

— Restricting malpractice lawsuits only to the counties in which the alleged malpractice occurred.

— Made joint and several liability more fair so that multiple defendants are only made liable for their percentage of fault for all non-economic damages.

— Good Samaritan: Provided immunity from liability for certain health-care providers who offer medical services at schools and to physicians who render medical services under a special volunteer medical license.

— Product liability in drug cases: Unless negligence is proven, doctors who prescribe and pharmacists who dispense federally approved drugs were made immune from liability lawsuits. Nurse practitioners, physician assistants, and optometrists were also afforded immunity.

— Risk pool: Mississippi Insurance Commissioner George Dale was directed to report to the legislature on medical malpractice insurance availability and the feasibility of creating an actuarially-sound, state-sponsored malpractice insurance risk pool. The commissioner’s Report on Affordability and Availability of Medical Malpractice Insurance in the State of Mississippi was filed Jan. 3, 2003. The Medical Malpractice Insurance Availabil-ity Act (Senate Bill 2628), which passed the 2003 state legislature, was signed into law by Gov. Ronnie Musgrove on April 25, 2003. The bill’s purpose was to provide a temporary market of last resort to make necessary medical malpractice insurance available to health care facilities and physicians, nurses and any other personnel who are licensed to practice in the state. As of Oct. 17, the pool had taken in $2.9 million in premium and had issued 127 policies to physicians, hospitals, and other care facilities.

— Expert opinion: Plaintiffs must have at least one medical expert determine that a physician has committed malpractice before a lawsuit can proceed.

— Prior notice: Plaintiffs were required to give health care providers 60 days written notice of their intent to sue for negligence.

— Statute of limitations for nursing homes: Reduced the current three-year statute of limitations for suing nursing homes for alleged wrongdoing to two years.

— Confidentiality: Made nursing home records confidential, but allowed disclosure to residents or their representatives or to health-care providers. Limited a plaintiff’s ability to discover previous acts of malpractice by the nursing home.

Since the passing of the bill a little over a year ago, the Hattiesburg American newspaper reported that only 72 mass tort cases were filed in the first nine months of 2003 in Mississippi, compared to 969 cases in all of Mississippi during 2002.

The business climate and beyond
Steve Browning, executive director of Mississippians for Economic Progress, when asked if he had noticed a change in the business climate since the passing in October 2002 of House Bill 2 (Mississippi’s tort reform bill) and signage by Gov. Musgrove, noted: “Although Mississippi’s Legis-lature passed some tort reform legislation last fall (2002), it was not comprehensive enough to significantly improve our state’s legal and business climates. HB 2 was, however, a strong first step toward the ultimate goal of a complete end to lawsuit abuse in our courtrooms. Comprehensive tort reform will drastically improve Mississippi’s business climate once our legislature enacts it.”

According to Browning, a number of different individuals have been impacted in the Magnolia State.

“Mississippi’s physicians and other medical professionals have extreme difficulty in obtaining medical liability coverage,” Browning commented. “Mississippi’s homeowners also have very few choices when seeking homeowners insurance. Most insurance companies are taking a wait-and-see attitude toward doing business in Mississippi — they want to see a serious commitment toward comprehensive tort reform from the state Legislature.”

Browning and his group are not standing pat as they look for answers in the new year.

“MFEP has a package it wants to offer to the state Legislature in January. Our omnibus bill will include eight key points: joinder and venue reform, limits on non-economic damages, elimination of joint and several liability, protections for property owners, protections for ‘mom and pop’ retailers of nationally-reputable goods, and a few other items.”

Topics Lawsuits Mississippi Medical Professional Liability